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ELRCPartially AllowedCause No 41 of 2017 (Formerly Nakuru Cause No 243 of 2016)· [2019] KEELRC 2606 (KLR)

Martin Ratemo Nixon v Jumbo North East Africa Mills Limited [2019] KEELRC 2606 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
14 November 2019
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer cannot fire a worker for desertion without first trying to reach them for an explanation, even after alleged theft.

What this practically means

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Executive summary

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The claimant sued the respondent alleging that he was employed in September 2009 as a Tongs Machine Operator, later becoming a supervisor, earning Kshs. 12,000 per month, and was summarily dismissed on or about 31st March 2015 following a workplace injury. He claimed unpaid house allowance, denial of rest days, unpaid terminal benefits and non-issue of a certificate of service. The respondent denied unfair dismissal, contending the claimant was engaged in 2011 as a casual labourer paid Kshs. 350 per day weekly, and that he and another employee attempted to steal metal by overloading a lorry, fleeing when stopped at the weighbridge, and deserted duty thereafter, with the incident reported at Kapsoya Police Post. The respondent's HR supervisor confirmed in cross-examination that no show cause letter was issued because the claimant was said to have deserted. The court held that a termination on account of desertion is justifiable only where the employer demonstrates attempts to contact the employee to show cause why employment should not be terminated for unauthorized absence. That was not demonstrated, and the termination was therefore procedurally unfair. The court awarded one month's salary in lieu of notice (Kshs. 12,000) and six months' salary as compensation for unfair termination (Kshs. 72,000), with costs of the suit. However, the claims for overtime and annual dues were rejected, the claimant having admitted signing annually for all dues including overtime and allowances. The award attracts interest at court rates, subject to taxes where applicable. Judgment was dated and delivered at Nairobi on 14th November 2019 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Procedural fairness of termination for desertion

Holding

The termination was procedurally unfair because the respondent produced no evidence of attempts to contact the claimant to show cause before terminating his services for desertion.

Reasoning

The court accepted that the claimant may have attempted to smuggle extra steel and fled, but held that even so, the employer was bound to make attempts to contact the employee to explain why his services should not be terminated on account of unauthorized absence. The respondent's witness confirmed no show cause letter was issued, the explanation being that the claimant had deserted. This failure rendered the termination procedurally unfair notwithstanding the seriousness of the alleged misconduct.

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02

Claims for overtime, annual dues and house allowance

Holding

These claims failed as the respondent rebutted them and the claimant admitted signing annually for all dues including overtime and allowances.

Reasoning

The respondent's evidence was that weekly payments included overtime and that leave dues were paid each year, with the claimant signing annually acknowledging settlement of dues. In cross-examination the claimant admitted signing vouchers and declarations of settlement and that the respondent used to remit NSSF dues. On this evidence the court found the claims for overtime and annual dues successfully rebutted and declined to award them.

p. 2

Legal principles established

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  • A termination of employment on account of desertion is only justifiable where the employer demonstrates attempts to contact the employee to show cause why employment should not be terminated for unauthorized absence.

Court orders

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  1. 1.Award of Kshs. 12,000 being one month's salary in lieu of notice
  2. 2.Award of Kshs. 72,000 being six months' salary as compensation for unfair termination
  3. 3.Costs of the suit awarded to the claimant
  4. 4.Interest on the award at court rates, subject to taxes where applicable
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim for unfair termination and terminal benefits

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Martin Ratemo Nixon v Jumbo North East Africa Mills Limited [2019] KEELRC 2606 (KLR)", Case Analysis (2019). Cause No 41 of 2017 (Formerly Nakuru Cause No 243 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2606/eng@2019-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.